Economic Support Funds Threatened Again for ICC Member Countries

In June  the House of Representatives passed the Fiscal Year 2006 (FY06) Foreign Operations Appropriations Act (H.R. 3057), containing a new version of the FY05 Nethercutt amendment. The Nethercutt amendment prohibits the U.S. government from granting Economic Support Funds (ESF) to countries that have not agreed to a bilateral immunity agreement (BIA) with the United States. BIAs are designed to provide immunity for U.S. nationals and contractors working for U.S. companies from the International Criminal Court. 

Like the FY05 version, the FY06 draft also contains waivers that allow the President to waive the restrictions on ESF for NATO member countries, major non-NATO allies, and for national interest reasons.  These waivers are similar to those in the American Servicemembers’ Protection Act; however, the President has yet to use any of these waivers.

Countries that have been adversely affected by the Nethercutt amendment are confused by U.S. attempts to sabotage efforts to strengthen international law and eradicate impunity for war criminals.  All of the countries affected are either democracies or in the process of consolidating democracy.  They have refused to sign a BIA with the United States because it would put them in breech of their ICC treaty obligations.  Many of the countries already have SOFAs, or Status of Forces Agreements, or other diplomatic arrangements with the U.S. that reserve full U.S. jurisdiction over American personnel and officials operating on their territory. Yet the U.S. has not been satisfied with these SOFAs. Rather, through the Nethercutt Amendment, the United States imposes sanctions on some of its closest allies in the war on terror and the war against drug trafficking. 

Expressing concern over these sanctions, General J. Craddock stated on behalf of Southcom that the sanctions are “restricting our access and interaction” thereby “hampering the engagement and professional contact that is an essential element of our regional security cooperation strategy.”

U.S. insistence that state parties to the ICC sign a bilateral immunity agreement is rooted in illogical and unfounded fears.  In recent months the ICC has demonstrated its ability to address humanitarian crises that threaten to destabilize entire continents.  The ICC is investigating war crimes in the Darfur, Sudan following a referral by the U.N. Security Council.  The ICC is also investigating war crimes in the war-wracked regions of Northern Uganda and the Democratic Republic of Congo.  U.S. attempts to undermine the ICC will damage our relationship with our allies and could obstruct the very justice that the Court is trying to achieve.

Updated August 24, 2005